In a Section 482 Cr.P.C. application, the High Court dismissed the appeal against an order rejecting the discharge application and noting non-compliance with passport deposit conditions, upholding the trial court's maintenance of proceedings.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2024:AHC:143549
Court No. - 77
Case :- APPLICATION U/S 482 No. - 18676 of 2024
Applicant :- Ram Dilawari Opposite Party :- State of U.P. and Another Counsel for Applicant :- Chhaya Gupta,Sujeet Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to stay the impugned order dated 01.03.2024 passed by learned Additional District & Sessions Judge-II/Special Judge (SC/ST Act), District Gautam Buddh Nagar in ST No. 688 of 2018 (State Vs. Ram Dilawri & others), arising out of Case Crime No. 332 of 2012 under Section 307, 120B IPC, Police Station-58 Noida, District-Gautam Buddh Nagar as well as further proceedings of ST No. 688 of 2018 (State Vs. Ram Dilawri & others), pending before the learned Additional District & Sessions Judge-II/ Special Judge (SC/ST Act), District Gautam Buddh Nagar, otherwise the applicant will suffer irreparable loss and injury.
It is further prayed that this Hon'ble Court may graciously be pleased to quash impugned order dated 01.03.2024 passed by learned Additional District & Sessions Judge-II/Special Judge (SC/ST Act), District Gautam Buddh Nagar in ST No. 688 of 2018 (State Vs. Ram Dilawri & others), arising out of Case Crime No. 332 of 2012 under Section 307, 120B IPC, Police Station-58 Noida, District-Gautam Buddh Nagar as well as further
proceedings of ST No. 688 of 2018 (State Vs. Ram Dilawri & others), pending before the learned Additional District & Sessions Judge-II/ Special Judge (SC/ST Act), District Gautam Buddh Nagar, and or pass any such other order which this Hon'ble Court may deem fit and proper under the circumstances of the case in the interest of justice. "
"Heard Sri Shivam Yadav, learned counsel for the applicant and Sri Sanjay Tripathi, learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed for quashing the impugned order dated 1.8.2015 passed by learned Chief Judicial Magistrate, Gautam Budh Nagar in Case No. 10995 of 2012 (State Vs. Ram Dilwari & another) arising out of Case Crime No. 332 of 2012, under Sections 307, 120-B I.P.C., P.S. Sector-58 NOIDA, District Gautam Budh Nagar.
It has been contended by the learned counsel for the applicant that the applicant is Canadian citizen and have business in India as well as abroad, has been falsely implicated in the present case due to business rivalry and there is allegation of conspiracy against the applicant. He submits that the applicant has got himself bailed out in the present case and he is facing trial. He further submitted that at the present moment, the applicant is aged about 80 years and he is in abroad. He further submitted that the applicant is suffering from some cardiac problem as well as old age disease and he has been advised by the doctor that he should not travel by air. The medical document of the applicant has been annexed as annexed-9 page no. 44 of the accompanying affidavit.
Learned counsel for the applicant has further submitted that the applicant
undertakes to cooperate with the trial subject to some time may be given to the applicant to appear before the court concerned.
Considering the facts and circumstances of the case as well as the material brought on record, it is directed that the applicant shall appear and surrender before the court concerned within a period of six weeks from today.
For a period of six weeks from today, non-bailable warrant issued against the applicant shall be kept in abeyance.
In case, the applicant does not appears before the Court below within the aforesaid period, trial Court is free to take coercive action against him.
With the aforesaid direction, the present 482 Cr.P.C. application is disposed of.
Order Date :- 14.9.2015 "
"Heard learned counsel for the parties.
Admittedly, on his own showing, the applicant has not complied with the order dated 1.8.2015 passed in Application u/s 482 CrPC no. 27503 of 2015, by which he was directed to ensure his attendance before the court below and thereafter to apply for bail and this Court had granted him a limited protection for a period of six weeks.
If that be so, it does not lie in the mouth of the applicant now to contend that as a matter of right, he is entitled to claim exemption.
The application is misconceived and is dismissed.
Order Date :- 18.5.2016 "
7. Applicant filed Application U/S 482 Cr.P.C. No. 38964 of 2016 and on 17.12.2016 this Court passed the following order:
"Heard learned counsel for the applicants and the learned A.G.A.
Present application has been filed for quashing the charge sheet dated 09.6.2012 in Case No. 10995 of 2012 arising out of case crime No. 332 of 2012 under Sections 307, 120B IPC, police station Sector-58 Noida, district
Gautam Budh Nagar and to quash the proceedings of the aforesaid case pending in the court of Chief Judicial Magistrate, Gautam Budh Nagar.
It is contended by learned counsel for the applicants that the applicants are N.R.I. and the applicant No. 1 is aged about 81 years of suffering from various old age ailments and is residing in Canada. It is next contended by learned counsel for the applicants that the applicants have already been enlarged on bail and it has been prayed that the applicants may be permitted to move application for discharge through counsel.
After hearing the learned counsel for the applicants, learned A.G.A. and after perusing the material on record, this application is finally disposed of with liberty to the applicants to move appropriate application for discharge, through counsel within a period of thirty days from today and if same is filed, the court concerned shall consider and decide the discharge application of the applicants expeditiously, strictly in accordance with law, preferably within a period of six months from the date of filing of such application.
Order Date :- 17.12.2016 "
" As prayed by learned counsel for applicant, present application is dismissed as withdrawn. "
"Heard learned counsel for the applicant and learned A.G.A. for the State.
The present application has been filed to quash the impugned order dated 17.3.2018, arising out of Case Crime No. 332 of 2012, under Sections 307, 120B IPC, Police Station Sector-58 NOIDA, District Gautam Budh Nagar, and entire criminal proceedings in Case Crime No. 10995 of 2012 (State Vs. Ram Dilwari and another), pending in the court of learned Chief Judicial Magistrate, Gautam Budh Nagar.
Learned counsel for the applicant submits that the applicant is a Canadian citizen and he has been falsely implicated in a criminal case. He had been enlarged on bail by this Court on 25.5.2012 in Criminal Misc. Bail Application No. 12942 of 2012. The applicant then appears to have filed an application 482 Cr.P.C. No. 38964 of 2016 to challenge the charge sheet dated 9.6.2012. The said 482 Cr.P.C. application came to be disposed of by the order dated 17.12.2016 on the following terms:-
"It is contended by learned counsel for the applicants that the applicants are N.R.I. and the applicant No. 1 is aged about 81 years of suffering from various old age ailments and is residing in Canada. It is next contended by learned counsel for the applicants that the applicants have already been enlarged on bail and it has been prayed that the applicants may be
permitted to move application for discharge through counsel.
After hearing the learned counsel for the applicants, learned A.G.A. and after perusing the material on record, this application is finally disposed of with liberty to the applicants to move appropriate application for discharge, through counsel within a period of thirty days from today and if same is filed, the court concerned shall consider and decide the discharge application of the applicants expeditiously, strictly in accordance with law, preferably within a period of six months from the date of filing of such application."
It is then submitted that unfortunately the applicant's medical condition deteriorated and the medical advise given to him took precedence the legal advise tendered to him and he proceeded to Canada for his better treatment without filing the discharge application.
In such circumstance, non-bailable-warrant appears to have been issued against the applicant which has prompted the applicant to again approach this Court by means of the present application.
While the applicant is himself to blame for his plight inasmuch as having been granted an indulgence to file discharge application through counsel, he has failed to do so within the time permitted. However, the applicant is about 84 years of age and it does appear that he is suffering from serious ailments in proof where of certain documents has been annexed in support of the present application.
The present application is thus disposed of, allowing the applicant two months further time to file discharge application through counsel, subject to payment of cost of Rs. 10,000/- to Legal Services Committee, High Court Allahabad, within a period of two weeks from today.
Order Date :- 12.7.2018 "
"1. Heard Shri Manish Tiwari, learned Senior Advocate assisted by Shri P.K. Singh, learned counsel appearing for the applicants, Shri S.D. Pandey, learned AGA for the State, Shri V.K. Singh, learned counsel appearing for opposite party no. 2.
2. The present application under Section 482 Cr.P.C. has been filed by the applicants praying to quash the entire proceeding as well as impugned order dated 10.08.2022 passed by learned Special Judge, SC/ST Act, Gautam Budh Nagar in Special S.T. No. 688 of 2018, (State v. Ram Dilawari and others) arising out of Case Crime No. 332 of 2012, under Section 307 and 120-B I.P.C., Police Station- Sector-58, Noida, DistrictGautam Budh Nagar pending in the Court of Special Judge, SC/ST Act, Gautam Budh Nagar.
3. Shri Manish Tiwari submits that there was a civil suit pending between
the parties before National Company Law Tribunal. Applicant no. 1 is 90 year old person and he is physically not fit. He is virtually immobile. The applicant no. 2 is a lawyer of applicant no. 1 before the NCLT. An FIR was lodged on 29.04.2012, in which, it is alleged that some unknown person shot one Tilak Raj Arya, who was brother of opposite party no. 2 and further stated the applicant had got it done. It is clear that there was one gun-shot injury. The applicants were arrested and were enlarged on bail. After investigation, a charge-sheet was submitted on 09.06.2012 and summons were issued.
4. The applicants filed an application under Section 482 CrPC before this Court bearing Application No. 38964/2016, in which, this Court on 17.12.2016 passed the following order :-
"It is contended by learned counsel for the applicants that the applicants are N.R.I. and the applicant No. 1 is aged about 81 years of suffering from various old age ailments and is residing in Canada. It is next contended by learned counsel for the applicants that the applicants have already been enlarged on bail and it has been prayed that the applicants may be permitted to move application for discharge through counsel.
After hearing the learned counsel for the applicants, learned A.G.A. and after perusing the material on record, this application is finally disposed of with liberty to the applicants to move appropriate application for discharge, through counsel within a period of thirty days from today and if same is filed, the court concerned shall consider and decide the discharge application of the applicants expeditiously, strictly in accordance with law, preferably within a period of six months from the date of filing of such application."
5. Thereafter, the applicant no. 1 left for Canada without even moving a discharge application. Since the applicant had proceeded for Canada and did not appear, a warrant has been issued against him. This warrant was challenged by the applicant vide application U/S 482 No. 20397 of 2018. This application was disposed of vide order dated 12.07.2018, wherein, the court took a serious view that the applicant no. 1 has moved to Canada without taking a discharge, however, the court further granted two months’ time to move a discharge application. Thereafter, the applicant moved a discharge application that was rejected vide order dated 10.08.2022, against which, the applicant has filed the instant application assailing the rejection order.
6. Learned counsel for the applicants further submits that there is nothing on record to show involvement of the applicants except a bald allegation made in the FIR, and there is no evidence of conspiracy, hence, the chargesheet cannot be sustained. Learned counsel for the applicants submits that there is no reason for suspicion neither there is any ingredient of Section 120-B IPC. He further submits that the allegation levelled against the applicant is only a bald allegation. Since, no case is made out against the applicants, hence, the rejection of discharge application is bad in law.
7. Learned counsel for the applicants relied on a decision passed by the Hon’ble Apex Court in the matter of Vijayan v. State of Kerala, 1999 (3)
SCC 54, in which, it has been held that, from the facts and documents on record, if no interference can be drawn of the alleged conspiracy then, the proceedings should be dropped.
8. Mr. Vineet Kumar Singh, learned counsel appearing for opposite party no. 2 submits that applicant no. 1 is a Canadian Citizen who has been living in Canada since 2012. He further submits that against applicant no. 1, somebody had filed an FIR in Delhi for committing fraud. In that proceedings in lower court, Delhi, the applicant no. 1 had submitted that he is required to go for operation of his wife in Canada and for his further business interest and accordingly, he was allowed to travel Canada with a direction that he will report and will deposit the passport to the court but he never came back since 2012. The applicant no. 1 has fled to Canada instead of staying there. Since the applicant no. 1 had ran away to Canada, the IO moved an application in the Lower Court in Delhi for issuance of NBW and the same should be served through Ministry of External Affairs. The Office of Additional Deputy Commissioner of Police, South-East Delhi moved an application on 13.08.2023 stating all the facts that the applicant is an absconder and NBW may be issued through Ministry of External Affairs.
9. Shri V.K. Singh further submits that the victim has given under Section 161 CrPC, in which, it is categorically stated that he received gun-shot injuries by a contract killer who were contracted by the applicants. He further submits that medical examination report shows that the situation of the victim was critical. He also submits that at the stage of discharge, mini trial is not permissible and the defence of the accused is not liable to be tested on merits. He placed reliance upon a judgement passed in The State Of Rajasthan vs Ashok Kumar Kashyap, 2021 (11) 191. He further submits that the applicants have been named in the FIR.
10. He further submits that a pre-emptive complaint was filed by the injured on 09.04.2012 against the applicants and after 20 days, FIR was lodged on 29.04.2012. In this complaint, he has clearly taken the name of the applicants.
11. Per contra, Shri S.D. Pandey, learned AGA for the State has vociferously opposed the application.
12. I have carefully considered the submissions advanced by learned counsel for the respective parties. With the able assistance, I have perused the pleadings, grounds taken in the petition/application, affidavits and annexures thereto and the reply filed by concerned parties.
13. In the instant application, an interim order was passed on 04.04.2023, which is as under :-
“Heard Sri Manish Tiwary, learned Senior Advocate assisted by Sri Praveen Kumar Singh, learned counsel for the applicants and Sri Sanjay Kumar Singh, learned counsel for the State.
This application under Section 482 Cr.P.C. has been filed by the applicantsRam Dilawari and Manish Agarwal with the prayer to allow this application and quash the entire proceeding as well as impugned order
dated 10.08.2022 passed by learned Special Judge, SC/ST Act, Gautam Budh Nagar in Special S.T. No. 688 of 2018, (State vs. Ram Dilawari and others) arising out of Case Crime No. 332 of 2012, under Section 307 and 120-B I.P.C., Police Station Sector-58, Noida, District Gautam Budh Nagar pending in the Court of Special Judge, SC/ST Act, Gautam Budh Nagar with a further prayer that proceedings of the aforesaid case be stayed against the applicants.
Learned counsel for the applicants argued that the applicants have been falsely implicated in the present case. It is argued that there was some dispute regarding property and shareholding between the applicants and the brother of the opposite party no.2. It is argued that there is no evidence whatsoever to implicate the applicants in the present case. The allegations levelled against the applicants are totally false and vague. In so far as the allegation of conspiracy is concerned, there is no material on record to show that there has been meeting of mind between the accused persons. It is argued that the applicant no.1 is an old man aged about 86 years and is suffering from various old age diseases. Paragraph 27 of the affidavit has been placed for the same. In so far as the applicant no.2 is concerned, he is a lawyer by profession and by virtue of his association with the applicant no.1 he has also been roped in the present case with false allegations. It is argued that the present dispute arose due to business rivalry and is a civil dispute.
Matter requires consideration.
Issue notice to the opposite party no.2 returnable within four weeks.
Opposite parties may file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
Let the matter be listed on 03rd, August 2023.
Till the next date of listing, no coercive action shall be taken against the applicants in the aforesaid case with the following condition:-
(i) the applicants shall not leave India without the previous permission of the Court and if they have passport the same shall be deposited by them before the trial court within a period of one week, failing which, this order shall automatically stand vacated.”
14. A plain reading of this order shows that there was a condition in the application that the applicant shall not leave India without previous permission of the Court and the passport shall be deposited by them before the court below within a period of one week, failing which, this order shall automatically stands vacated.
15. Since, the applicants did not submit the passport in the court within a week, the opposite party no. 2 moved an application on 26.07.2023 stating that since the condition laid down by this Court has not been complied with, so the NBW may be issued and the trial may proceed. On this application, the Additional District & Sessions Judge-II/Special Judge (SC/ST) Act, District Court Gautam Budh Nagar has passed an order on 01.03.2024
which is as under :
“6. I have heard the submission of the Ld. Counsel and Ld. ADGC representing the State. Later supported the version of the complainant/victim and perused the material on record. It is true that incident has occurred in 2012 and since then almost, a decade has passed and the accused has jumped the bail and violated the order of Hon'ble High Court dated 04.04.2023 & 06.09.2023. He also failed to deposit his passport as directed by the Hon'ble Court and has absconded this country. The accused is also disposing all the property out of which the property named above (1)- C-4/16, First Floor, Safdarjung Development Area, New Delhi & (2)- N-134A, 1st Floor, Panchsheel Park, New Delhi-110017, A-22 Mohan Cooperative, Industrial Estate, Mathura Road, Delhi 110044 has come to the notice of the complainant/victim and has, been brought on record before this court. This court is of the opinion that there is sufficient material on record for issuing proclamation u/s 82/83 along with the order of attachment of the property bearing no. C-4/16, First Floor, Safdarjung Development Area, New Delhi & (2)-N-134A, 1st Floor, Panchsheel Park, New Delhi-110017, A-22 Mohan Cooperative, Industrial Estate, Mathura Road, Delhi 110044. simultaneously so the absconder/accused Ram Dilwari may be brought within reach of the process of the court.
ORDER
The application for issue of process u/s 82/83 of Cr.P.C against the absconder/accused Ram Dilwari in ST No. 688/2018 (State Vs. Ram Dilawari and Ors.) u/s 307,120-B of IPC, PS Sector 58 Noida Gautam Budh Nagar is hereby allowed. The office is directed to process the proclamation u/s 82/83 of Cr.PC through the concerned police station and execute this order through counter part in the Delhi jurisdiction after verifying the ownership of the named property.
16. That, the summoning order as well as the charge-sheet has already been challenged in two earlier proceedings in this court. The Court did not find merit in this matter and accordingly, disposed of with liberty to move a discharge application.
17. As far as the impugned order passed on the discharge application is concerned, it is settled principle of law that the Court has to look into and consider the material placed before the Court by the Investigating Agency while framing of charge or considering the accused for discharge.
18. In the matter of State of Orissa Vs Devendra Nath Padhi, 2005 (51) ACC 2001SC), the Hon'ble the Supreme Court had observed that for framing of charge and discharge it is only the material produced by the prosecution alone, which is to be considered for framing of charge or discharge. The relevant extract is reiterated underneath:
“8. The expression "the record of the case" is used in S. 227 of the Code. Though the word "case" is not defined in the Code but S. 209 throws light on the interpretation to be placed on the word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate
that the offence is triable exclusively by the Court of Session, he shall commit "the case" to the Court of Session and send to that Court "the record of the case" and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in S. 227 relate to the case and the documents referred in S. 209. That is the plain meaning of S. 227 read with S. 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.
16….The material as produced by the prosecution alone is to be considered and not the one produced by the accused….."
19. In the case of Kanchan Kumar Vs State of Bihar, 2022 (9) SCC 577, the Hon'ble Supreme Court has considered the principles of discharge and also reiterated the authority on the point enunciated by Hon'ble the Supreme Court in Prafulla Kumar Samil, (1979) 3 SCC 4, (supra) the points required for consideration are reiterated underneath:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however If two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This how ever does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
20. Since, in the instant matter, a prima facie case against accused is made out as the material placed before the Court discloses grave suspicion against the accused which has been corroborated in the statement given by the informant, hence, the trial court was completely justified in framing the charge. The principles laid down in Prafulla Kumar Samil (supra) has been
met out by trial court while framing of charges.
21. In the case of Captain Manjeet Singh Virdi (Retd) Vs Hussain Mohammed Shattaf and others, 2023 (7) SCC 633, Hon'ble the Supreme Court has observed that the law on the issue of discharge is well settled that, at the time of charge the entire evidence produced by the prosecution is to be believed and in case no offence is made out in the light of evidence produced by the prosecution then only the accused can be discharged.
22. That, in view of the ratio laid down by the Hon’ble Supreme Court in a catena of judgements, it is clear that if the Court finds that the material produced by the prosecution is enough which is to be considered in the instant matter, prima facie, a case has been made out against the applicants and the applicants have also not come to the court with clean hands.
23. I see no infirmity in the impugned order by which, the discharge application has been rejected and also finds no merit in the instant application.
24. Hence, the instant application is dismissed.
Order Date :- 15.03.2024 "
13.. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the only ground raised in this application is that present applicant is aged about 85 years and residing in Canada. The said ground has already been negated by this Court on previous occasions also. As such, this Court does not find any good ground to interfere in this application.
dismissed.
Order Date :- 4.9.2024 YK
Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad
3 issues framed by the court
Whether the High Court can interfere with the trial court's order rejecting the discharge application under Section 227 Cr.P.C.
Whether the non-compliance with the condition of depositing the passport justifies the issuance of process under Section 82/83 Cr.P.C.
Whether the applicant's old age and foreign residence justify quashing the proceedings.
Colour shows how this judgement treated each authority
Vijayan v. State of Kerala, 1999 (3) SCC 54Referred¶61
The State Of Rajasthan vs Ashok Kumar Kashyap, 2021 (11) 191Referred¶64
State of Orissa Vs Devendra Nath Padhi, 2005 (51) ACC 2001 SCDistinguished¶88
Kanchan Kumar Vs State of Bihar, 2022 (9) SCC 577Explained¶91
Captain Manjeet Singh Virdi (Retd) Vs Hussain Mohammed Shattaf and others, 2023 (7) SCC 633Applied¶99
4 provisions across 2 enactments
Ram Dilawari
State of U.P.
Yashwant Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
